CH. II.] Concurrent Writs of Scire Facias may issue. to a declaration in scire facias, reciting a judgment obtained by the plaintiffs against the public officer of the Yorkshire Agricultural and Commercial Banking Company, and praying execution against the defendant as one of the members of the company, there was a plea in abatement that the plaintiff had issued seven separate writs of scire facias against the defendant and six other shareholders, all of which were pending; and, on demurrer to the plea, it was held bad for multiplicity, the defendant having set forth in it six writs, all pending, instead of relying upon one. The Court, in giving judgment, expressly avoided giving any opinion on the point raised; Parke, B., in delivering the judgment of the Court, saying, “We do not wish to be understood to express any opinion on the subject of the construction of the statute. If we had to decide that point the argument might perhaps be found to require some consideration; but on that point we express no opinion." Judgment for the plaintiff of respondeat ouster. This point, however, has been recently raised and decided in the Court of Exchequer in the case of Burmester v. Cropton (m). In this case to a scire facias under the 7 Geo. IV. c. 46, s. 13, against a member for the time being of a banking co-partnership, it was held to be no answer that the plaintiff had previously issued another scire facias, and obtained judgment thereon against another member for the time being of such co-partnership. In giving judgment in this case, Mr. Baron Parke is reported to have said (n), "It appears to me that we ought to construe the 13th section of the statute on which this case depends, so as to carry into effect the intention of the legislature, which evidently was, that by suing the members of one or more classes in succession the creditor might recover his debt. It is manifest he would not be paid if after execution against one of a particular class who was not able to pay, there was an end of all further execution against any other members of that class. For according to the defendant's argument the plaintiff must then resort to another class, which by the statute he could not do until he had ex a judgment against the public offi. cer, and the defendant pleaded in abatement that a concurrent writ had been issued at the same time for the same sum on the same judgment by the same plaintiff, against another member of the co-partnership who was still alive, and that the suit against him was still depending. The affidavit verifying the plea was held not to sworn be sufficient, the defendant not having (n) 3 Exch. 400. 131 132 Bona fide Attempts to recover the Debt must be [Bк. II. hausted all the members of the previous class. Therefore the effect of putting that construction on the statute would be, that if one member of a class turned out insolvent the plaintiff would have no remedy at all. The statute was evidently framed by some one not conversant with proceedings at the common law, but it is perfectly clear that the legislature meant in one way or another, by making different classes of persons responsible, that the creditor should be paid his debt. It is said to be a hardship that several concurrent writs of execution should issue when perhaps if one had issued in the first instance the debt would have been paid, but it should be recollected that none would have issued unless the creditor was unpaid. If indeed a number of writs issued for the purpose of oppression, the Court would interfere to prevent the abuse of its process, but the mere fact of one writ having issued against a person liable to pay the creditor is no answer to another writ against another shareholder of that class." In Nunn v. Lomer (o) the same question was raised by plea in abatement, which was demurred to. In that case the Court held the plea to be insufficient; Parke, B., in giving the judgment of the Court, saying, "I think our judgment ought to be for the plaintiff. I entertain no doubt whatever on the matter that, according to the true meaning of the Act, the plaintiff is not bound to proceed against one or all of those members, but that he may select any number he pleases. He may have concurrent writs going on at the same time. When the debt is paid an exoneretur will be entered" (p). But it would seem that the plaintiff must do more than select one or two of the first class of shareholders against whom he may choose to proceed before he can resort to the class of shareholders secondarily liable under the 13th section of the statute. It will have been seen from the judgment of Mr. Justice Littledale in Eardley v. Law (q) that before leave will be granted by the Court to issue a scire facias against a co-partner secondarily liable, “it must be shown that proper proceedings have been taken against some who are actually members. I do not say that it is necessary to proceed to execution against all the continuing members." And in the same case Mr. Justice Coleridge in delivering his judgment says, "The statute distinguishes between the class of persons primarily and the class secondarily liable. The last are to be called upon CH. II.] According to this decision of the Court of Queen's Bench, therefore, it does not appear how far a plaintiff must go (so long as he makes a bona fide endeavour to recover the fruits of his judgment from the class of creditors primarily liable), before he can obtain leave to issue a scire facias against any of the class of members secondarily liable. On referring to the decision of Alderson, B., in the Court of Exchequer, in the same year, in the case of Cross v. Law, in which Lord Chief Justice Denman says he agrees (s), we there find that Mr. Baron Alderson, in giving judgment, says, "It is proper that the Court should see that there has been a bona fide attempt made to fix ALL the members of the company for the time being, before any execution be allowed to go against members not in that condition." The words of the statute, it will be seen, are "that in case any such execution against any member or members for the time being of any such corporation or co-partnership shall be ineffectual for obtaining payment and satisfaction of the amount of such judgment, it shall be lawful for the party, &c., to issue execution" against the second class of members. The statute would seem to direct that any execution against any member or members for the time being, (if the amount of the judgment were not recovered,) would warrant proceedings against the members secondarily liable. The construction of the statute on this point in the earlier cases quoted was subject to much doubt. (r) 6 M. & W. 223; see ante, p. 113. (s) 6 M. & W. 22; and see ante, p. 115. 133 134 Bona fide Attempts to recover the Debt must be [Bk. II. The Court of Exchequer, in the case of Cross v. Law (†), having decided that "the Courts should see that there has been a boná fide attempt made to fix ALL the members of a company primarily liable before execution be allowed to go against members secondarily liable." The Court of Queen's Bench, in Eardley v. Law (u), deciding that "something real and bona fide must have been done before a plaintiff can ask for his remedy against the persons secondarily liable, without saying what might be the minimum." And the Court of Common Pleas, deciding in Ricketts v. Bowhay (x) that the Court must be satisfied "that all due means have been taken to obtain satisfaction against the parties primarily liable before execution is allowed to go against those whose liability only arises on their default." This point has, however, in the recent case of Field v. M'Kenzie, P. O. (y), to which we have already referred (z), been expressly raised and settled. Subsequently, in that case, an application was made to the Court, and a rule nisi was granted, to set aside the rule (a) on the ground that the affidavits on which it had been granted did not disclose a collateral security which the plaintiffs held, which, by care and management, might be made productive in discharge of the judgment debt. But the Court discharged the rule; Wilde, C. J., in delivering judgment, saying there was no reason why a security plaintiff should not proceed with his remedy by scire facias against which might the former members of the company, because there was in existence a certain security which, by care and management, might why a scire possibly, at some time or other, be rendered productive. The existence of a collateral be made available, no reason facias should not issue against members liable. So, in Harvey, P. O. v. Scott, P. O. (b), the same point was raised in the Court of Queen's Bench. The plaintiff was the public secondarily officer of the London and Westminster Bank, and recovered judg ment in February, 1847, against the defendant as the public officer of the Newcastle-upon-Tyne Joint-stock Banking Company. The Bank had become insolvent, and writs of scire facias were issued against ten persons then shareholders, on which writs of fieri facias had issued, and had been returned indorsed nulla bona. A rule nisi was obtained, calling on certain persons secondarily liable to show cause why writs of scire facias on the judgment should. (t) 6 M. & W. 223; ante, p. 113. (2) See ante, p. 124. (a) Field v. M Kenzie, P. O., 17 L. J., N. S., C. P. 98; 5 D. & L. 348; 4 C. B. 725. (b) 17 L. J., N. S., Q. B. 9; 11 Q. B. 92; and see ante, p. 124. first made against those primarily liable. 135 CH. II.] not issue against them. The affidavits on which the rule was obtained stated, that, from inquiries made, nothing could be obtained from the ten persons against whom the writs had issued, as they were all of them "worth nothing," and that the only other shareholders at the time of issuing the execution were contained in a list annexed and described as " dead," or "worth nothing." That before the judgment was obtained all the shareholders who possessed any property whatever had ceased to be shareholders; that there were no assets of any kind belonging to the bank, and that the only way of recovering the debt was by forcing payment from those who were shareholders at the time the contracts were entered into, and who had since retired from being shareholders. It was decided that a sufficient prima facie case had been shown for the scire facias to go. In delivering judgment on this case, Coleridge, J., said, "The clause of the statute appears to apply to two bodies of persons, those who were shareholders at the time when the judgment was recovered, and those who were shareholders at the time when the contract was entered into. Now it is a condition precedent to proceeding against the second class, that the judgment must have been attempted to be put in force against those of the first class. The statute, without specifying any mode, enables the Court to authorize execution against the second class of persons, and it has been decided that the proper mode is by scire facias (c), and we are to decide under what circumstances we will allow the proceeding. We must see that we do not injure either party by granting this power on insufficient materials, but if a prima facie case is made out the scire facias ought to go in order that the matter may be properly sifted." And Wightman, J., in delivering judgment in the same case, says, "It is enough that the plaintiff has tried to make the judgment available against those who But a prima were shareholders at the time when he obtained judgment, but it is must be said he has not issued execution against every person to see satisfy the whether he has assets or not. I think quite enough has been bona fide done to show that he has attempted bona fide to recover the debt been made against the existing shareholders." facie case made out to court that a attempt has to recover the debt existing share If a scire facias improperly issue against a person not second- against the arily liable as a member of a banking co-partnership, he may holders. plead to the scire facias that he was not a partner when the contract was entered into (d). And if all available steps have not If the (c) See ante, p. 113. (d) Harvey v. Scott, 17 L. J., N. S., Q. B. 12; per Wightman, J., 11 |